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Friday, May 27, 2011

This has been a big week for legal consent

Let us do some comparing and contrasting, shall we?

This week in New York City:

A jury acquitted two New York police officers on Thursday of charges that they raped a drunken woman after helping her into her apartment while on patrol.

The woman had described snippets of a harrowing night in which the officers, called to help her because she was extremely intoxicated, instead abused her. They insisted no rape occurred, with one allowing only that he snuggled with her while she wore nothing but a bra.

Here is what happened (allegedly happened? supposedly happened?) that night:

After initially helping the woman into her apartment, the officers were captured by surveillance cameras as they re-entered the woman’s East Village building three times.

Officer Moreno, 43, testified that he was a recovering alcoholic and had developed a rapport with the woman that night, when she confided in him that her friends were angry at her because she drank too much. The two flirted, he sang Bon Jovi’s “Livin’ on a Prayer” to her and she actually came onto him, wearing nothing but a bra, he said. He testified that he kissed the woman on the forehead and snuggled with her in her bed, but insisted they did not have sex.

But the woman, now 29 and living in California, told a much different story of what happened on that night in December 2008.

The woman, who was drinking heavily at a Brooklyn bar to celebrate a job promotion, conceded that she had blacked out many details of the evening, although she insisted she did not have a drinking problem. Still, she testified to vivid memories of hearing police radios crackling and Velcro tearing open, of feeling her tights being rolled down, and then of being penetrated as she lay dazed, face down on her bed.

This no longer appears in the article, but is quoted here:

Although the defense never conceded that the two had sex, a central point of argument in the case was whether the woman was too drunk to consent to sex. Under the prosecutors’ theory of rape, they had to prove that the woman was physically unable to consent to sex, meaning that she was either unconscious or unable to speak when she was penetrated.

Defense lawyers pointed to surveillance footage of the woman walking on her own as she entered the building in front of the officers as evidence that she was conscious and able to communicate. They also contrasted what the woman told some friends shortly after the alleged rape — that she thought she was raped — with the certainty that she was expressing on the witness stand. Her spotty recollection of that night, the defense said, was enough to raise reasonable doubt over whether she was raped.

Icky stuff.

This week in Ottawa:

A woman cannot give advance consent to sexual activity while unconscious, the Supreme Court of Canada ruled Friday.

The decision restores the conviction of an Ottawa man who regularly practised consensual erotic asphyxiation with his longtime girlfriend.

The case goes back to a particular episode in 2007 when the woman, who cannot be named because of a publication ban, complained to police about what her partner did to her after she passed out. At trial, the man was found guilty of sexual assault but his conviction was overturned on appeal.

On Friday, in a 6-3 decision, the country's top court restored the conviction. Writing for the majority, Chief Justice Beverley McLachlin said consent ends once someone is unconscious or asleep.

"If the complainant is unconscious during the sexual activity, she has no real way of knowing what happened and whether her partner exceeded the bounds of her consent," the ruling said.

The definition of consent is an ongoing state of mind where individuals can ask their partner to stop, McLachlin wrote.

"Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code," she wrote.

The description of the events in question have been removed from the CBC website, but essentially what happened is that this woman and her common-law husband often use erotic asphyxiation in their sexual endeavours, and one time when she was unconscious he penetrated her anally with a dildo. Originally she stated she had never consented to that, but she may have later said otherwise. At any rate, the gist of the verdict is that you can't say no, and you can't have a safe word, while you're unconscious, so consent you give before you lose consicousness isn't meaningful.

This might be bad news for practitioners of erotic asphyxiation, although I'm sure people won't press charges unless they feel their partner actually violated their laid-out boundaries while they were unconscious.

But altogether, a mixed-news week for survivors of "grey-area" rape. I would like to point out that though she may have been walking on her own when she entered the building, that doesn't mean the woman wasn't unconscious, asleep, or otherwise in an altered state later, when the sexual impropriety (because a police officer cuddling a nearly-naked drunk woman is still sexual impropriety in my books) occured.

And now it's law in Canada. Going home with someone doesn't mean automatic consent, and neither does agreeing to a sexual act if you are unconscious later when they try to take you up on it.

And that, is a much-needed step forward.

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